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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Legal Profession Amendment
(Complaints and Discipline) Bill 2000
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Legal Profession Act 1987 No 109 2
Schedules
1 Principal amendments 3
2 Law revision and other amendments 12
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY, has
finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of NEW
SOUTH WALES.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2000
New South Wales
Legal Profession Amendment
(Complaints and Discipline) Bill 2000
Act No , 2000
An Act to amend the Legal Profession Act 1987 with respect to complaints about,
and the discipline of, legal practitioners.
I have examined this Bill, and find it to correspond in all respects with the Bill as
finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
Clause 1 Legal Profession Amendment (Complaints and Discipline) Bill 2000
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Legal Profession Amendment (Complaints and
Discipline) Act 2000.
2 Commencement
This Act commences on a day or days to be appointed by
proclamation.
3 Amendment of Legal Profession Act 1987 No 109
The Legal Profession Act 1987 is amended as set out in Schedules 1
and 2.
Page 2
Legal Profession Amendment (Complaints and Discipline) Bill 2000
Principal amendments Schedule 1
Schedule 1 Principal amendments
(Section 3)
[1] Part 10 Complaints and discipline
Omit Division 3. Insert instead:
Division 3 Complaints about legal practitioners
134 Making of complaints
(1) A complaint may be made under this Part about the conduct of
a legal practitioner.
(2) A complaint may be made by:
(a) a Council, or
(b) the Commissioner, or
(c) any other person.
(3) A complaint that is duly made is to be dealt with in accordance
with this Part.
(4) A complaint may be made about conduct that is alleged to have
occurred either within or outside this State.
(5) This section does not affect any other right of a person to
complain about the conduct of a legal practitioner.
135 To whom complaint made
(1) A complaint is to be made to the Commissioner, unless it is
made by the Commissioner or by a Council.
(2) A complaint that is made to a Council instead of the
Commissioner is to be forwarded immediately to the
Commissioner by the Council.
(3) A copy of a complaint made by a Council is to be forwarded
immediately to the Commissioner by the Council.
Page 3
Legal Profession Amendment (Complaints and Discipline) Bill 2000
Schedule 1 Principal amendments
136 Requirements for making complaints
(1) A complaint must be in writing.
(2) A complaint must:
(a) identify the complainant and the legal practitioner
against whom the complaint is made, and
(b) describe the alleged conduct of the legal practitioner the
subject of the complaint.
(3) The Commissioner, or the Council to which a complaint is
referred for investigation, may require the complainant to do
either or both of the following:
(a) to give further information about the complaint,
(b) to verify the complaint, or any further information, by
statutory declaration.
137 Complaints made over 3 years after conduct concerned
(1) A complaint may be made about conduct of a legal practitioner
irrespective of when the conduct is alleged to have occurred.
(2) However, a complaint cannot be made more than 3 years after
that conduct is alleged to have occurred unless a determination
is made under this section that:
(a) it is just and fair to deal with the complaint having
regard to the delay and the reasons for the delay, or
(b) the complaint involves an allegation of professional
misconduct and it is in the public interest to deal with
the complaint.
(3) A determination under this section:
(a) in the case of a complaint made to or by the
Commissioner--is to be made by the Commissioner, or
(b) in the case of a complaint made by a Council--is to be
made by the Council.
(4) A determination made under this section is final and cannot be
challenged in any proceedings by the complainant or the legal
practitioner concerned.
Page 4
Legal Profession Amendment (Complaints and Discipline) Bill 2000
Principal amendments Schedule 1
138 Request by complainant for compensation order
(1) A complainant who has suffered a loss because of the conduct
the subject of the complaint may request a compensation order.
(2) A complainant who makes such a request must describe the
loss suffered by the complainant.
(3) Such a request may be made in the complaint. The request may
also be made, by notice in writing to the Commissioner or the
appropriate Council, at any time after the making and before
the disposal of the complaint.
(4) However, such a request may not be made after proceedings
have been instituted in the Tribunal with respect to the
complaint unless the Tribunal grants the complainant leave to
make the request.
(5) Such a request may only be made within 6 years after the
conduct that caused the loss is alleged to have occurred.
139 Summary dismissal of complaints
(1) A complaint may be dismissed by the Commissioner, or by the
Council to which it is referred for investigation, if:
(a) further information about the complaint is not given as
required by the Commissioner or Council, or
(b) the complaint or further information is not verified as
required by the Commissioner or Council.
(2) A complaint made to the Commissioner may be dismissed by
the Commissioner if the complaint is vexatious, misconceived,
frivolous or lacking in substance.
(3) A complaint may be dismissed under this section without any
investigation or without completing an investigation.
Note. Complaints may also be dismissed at any time under section 155A
if it is in the public interest to do so.
Page 5
Legal Profession Amendment (Complaints and Discipline) Bill 2000
Schedule 1 Principal amendments
140 Withdrawal of complaints
(1) A complaint may, subject to this section, be withdrawn by the
person who made it unless proceedings with respect to the
complaint have been instituted in the Tribunal.
(2) If the complaint was made to the Commissioner, the
withdrawal of the complaint is not effective unless notice in
writing of the withdrawal is given by the complainant to the
Commissioner or to the Council to which the complaint has
been referred.
(3) The Commissioner or the Council to which the complaint has
been referred may reject the withdrawal of the complaint if
satisfied that it may involve unsatisfactory professional conduct
or professional misconduct.
(4) If a complaint is duly withdrawn, no further action is to be
taken under this Part with respect to the complaint.
(5) The withdrawal of a complaint does not prevent:
(a) a further complaint being made under this Part, by the
same or any other person, with respect to the matter the
subject of the withdrawn complaint, or
(b) action being taken on any other complaint made with
respect to that matter.
141 Referral of complaints to Council
(1) The Commissioner may refer a complaint made to or by the
Commissioner to the appropriate Council if the complaint is
not to be investigated by the Commissioner under Division 5.
(2) When referring a complaint to a Council, the Commissioner
may recommend that the Council investigate the complaint or
refer it to mediation, or both.
(3) A decision to refer a complaint to a Council is to be made, as
far as practicable, within 21 days after the complaint is made
or, if further information or verification is required, within 21
days after the further information or verification is given or
provided. A Council is not excused from dealing with a
complaint because it is referred to the Council after the time
prescribed by this subsection.
Page 6
Legal Profession Amendment (Complaints and Discipline) Bill 2000
Principal amendments Schedule 1
(4) The Commissioner may refer a complaint to a Council even
though the Commissioner commenced but did not complete an
investigation into the complaint.
(5) This section does not apply to a complaint that is dismissed by
the Commissioner under this Division.
[2] Section 145A
Insert after section 145:
145A Nature of mediation
Mediation of a consumer dispute is not limited to formal
mediation procedures and extends to encompass preliminary
assistance in dispute resolution, such as the giving of informal
advice designed to ensure that the parties are fully aware of
their rights and obligations and that there is full and open
communication between the parties concerning the dispute.
[3] Section 147A Investigation of complaints by Commissioner
Insert after section 147A (1):
(1A) The Commissioner may, with the consent of a Council, refer a
complaint to the Council after the Commissioner has completed
an investigation into the complaint (including after proceedings
with respect to the complaint have been instituted in the
Tribunal by the Commissioner).
[4] Section 155A
Insert after section 155:
155A Dismissal of complaints if in public interest
(1) The Commissioner or the Council may dismiss a complaint,
whether before, during or after the investigation of the
complaint, if satisfied that it is in the public interest to do so.
(2) The circumstances in which a complaint may be so dismissed
include (but are not limited to) a complaint about a legal
practitioner who has retired from practice or is prevented from
practising or a complaint about conduct that is the subject of
another complaint under this Part.
Page 7
Legal Profession Amendment (Complaints and Discipline) Bill 2000
Schedule 1 Principal amendments
(3) If proceedings with respect to a dismissed complaint have been
instituted in the Tribunal by the Commissioner or Council, the
Tribunal may, on the application of the Commissioner or
Council, dismiss the proceedings.
[5] Section 159 Reviews
Insert after section 159 (3):
(4) The Commissioner has the same powers when reviewing a
decision of the Council as the Commissioner has under section
152 when investigating a complaint.
[6] Section 160 Decision of Commissioner on review
Omit section 160 (1) (b). Insert instead:
(b) refer the matter to mediation, or
[7] Section 160 (1) (c3)
Insert after section 160 (1) (c2):
(c3) reprimand the legal practitioner if the practitioner
consents to the reprimand, or
[8] Section 167A Tribunal may vary an information
Insert after section 167A (2):
(3) The variation of an information by the Tribunal to include an
additional allegation is not precluded because the alleged
conduct concerned occurred more than 3 years before the
variation is made.
[9] Section 167B
Insert after section 167A:
167B Substitution of informant
(1) If a Council or the Commissioner takes over a complaint after
an information has been laid in respect of the complaint, the
Tribunal may, on the application of the Council or
Commissioner, direct that the informant in the proceedings is
Page 8
Legal Profession Amendment (Complaints and Discipline) Bill 2000
Principal amendments Schedule 1
to be the Council or Commissioner, whichever has taken over
the complaint.
(2) This section has effect even if a hearing of the matter has
commenced before the Tribunal.
[10] Section 171OA
Insert after section 171O:
171OA Disclosure of information about disciplinary and other
proceedings against legal practitioners
(1) In this section:
disciplinary action means any of the following:
(a) the suspension or cancellation of the practising
certificate of a legal practitioner,
(b) the refusal to issue a practising certificate to a qualified
person,
(c) the removal of the name of a legal practitioner from the
roll of legal practitioners,
whether or not any such action is taken under this Part or in
this State.
liability includes liability in defamation.
(2) The Commissioner or a Council may publicise disciplinary
action taken against a legal practitioner (including the name
and other identifying particulars of the legal practitioner).
(3) If disciplinary action is quashed on appeal or review after the
action was publicised by the Commissioner or a Council, the
result of the appeal or review is to be publicised with equal
prominence by the Commissioner or Council.
(4) No liability is incurred by the State, the Commissioner, a
Council or any person acting at the direction of the
Commissioner or a Council in respect of anything done in good
faith for the purposes of publicising under this section
disciplinary action taken against a legal practitioner.
Page 9
Legal Profession Amendment (Complaints and Discipline) Bill 2000
Schedule 1 Principal amendments
(5) No liability is incurred by a person publishing in good faith
disciplinary action, or a fair report or summary of disciplinary
action, publicised by the Commissioner or a Council under this
section.
(6) This section is subject to section 56 but is not subject to section
171P.
(7) This section extends to disciplinary action taken before the
commencement of this section.
[11] Schedule 8 Savings, transitional and other provisions
Insert at the end of clause 1A (1):
Legal Profession Amendment (Complaints and Discipline) Act
2000
[12] Schedule 8
Insert at the end of the Schedule (with appropriate Part and clause
numbering):
Part Provisions consequent on the enactment of
the Legal Profession Amendment (Complaints
and Discipline) Act 2000
Definition
In this Part:
amending Act means the Legal Profession Amendment
(Complaints and Discipline) Act 2000.
Validation
(1) Any investigation or decision of a Council, the Commissioner,
the Administrative Decisions Tribunal, the former Legal
Services Tribunal or any court with respect to a complaint
made or initiated before 4 February 2000 is not invalid because
the complaint was made or initiated more than 3 years after the
conduct concerned was alleged to have occurred, whether or
not the Commissioner accepted the complaint in accordance
Page 10
Legal Profession Amendment (Complaints and Discipline) Bill 2000
Principal amendments Schedule 1
with section 138 (as in force before its amendment by the
amending Act).
(2) The variation of an information by the Administrative
Decisions Tribunal or the former Legal Services Tribunal
before 4 February 2000 to include an additional allegation is
not invalid because the alleged conduct concerned occurred
more than 3 years before the variation was made.
(3) This clause does not operate to reverse the decision of a court
in a particular case in which proceedings were finally
determined before the commencement of this clause. However,
this subclause does not preclude further complaints with
respect to the same or any related conduct.
Amending Act--application to pending complaints and
proceedings
(1) A complaint that was made or initiated under Division 3 of Part
10 and that was not determined before the substitution of that
Division by the amending Act is taken to be a complaint made
under that Division, as substituted by the amending Act.
(2) Sections 147A (1A), 155A and 160 (1) (c3), as inserted by the
amending Act, extend to a complaint made before the
commencement of those provisions.
(3) Sections 167A (3) and 167B, as inserted by the amending Act,
extend to an information laid before the commencement of
those provisions.
Page 11
Legal Profession Amendment (Complaints and Discipline) Bill 2000
Schedule 2 Law revision and other amendments
Schedule 2 Law revision and other amendments
(Section 3)
[1] Section 51 Functions of Bar Council
Insert at the end of the section:
(2) The Bar Council may delegate to any of its committees the
exercise of any of its functions under this Act, other than this
power of delegation. Such a delegation may be made only to a
committee whose presiding member is a member of the
Council.
[2] Part 10 (except a provision being omitted by this Act)
Omit the following wherever occurring:
and interstate legal practitioners
or interstate legal practitioner
or interstate legal practitioners
and locally registered foreign lawyers
or locally registered foreign lawyer
[3] Section 126 Definitions
Omit the definition of complaint. Insert instead:
complaint means a complaint under this Part.
[4] Section 126
Insert in alphabetical order:
legal practitioner includes an interstate legal practitioner.
[5] Section 127 Professional misconduct and unsatisfactory professional
conduct
Omit section 127 (1) (b1).
Page 12
Legal Profession Amendment (Complaints and Discipline) Bill 2000
Law revision and other amendments Schedule 2
[6] Section 128 Legal practitioner to whom Part applies
Omit section 128 (3). Insert instead:
(3) This Part applies to a person who is or was an interstate legal
practitioner only if the person practises or practised as a
barrister or solicitor and barrister in this State.
[7] Section 128A
Insert after section 128:
128A Investigations not related to complaints under this Part
This Part does not affect the power of a Council to conduct an
investigation into the affairs of a legal practitioner under the
provisions of any other Part of this Act or under any other Act.
Note. See for example the power of the Law Society Council to appoint
a person to conduct an investigation under section 55.
[8] Section 131 Functions of Commissioner
Insert after section 131 (1):
(1A) The Commissioner may appear by barrister or solicitor before,
and be heard by, the Supreme Court in the exercise of the
functions of the Supreme Court under this Act or otherwise in
relation to barristers or solicitors.
[9] Section 148 Investigation of complaints by Council
Omit "initiated by the Council" from section 148 (1).
Insert instead "made by the Council".
[10] Section 148 (2)
Omit the subsection.
[11] Section 157 Delegation by Council
Omit the section.
Page 13
Legal Profession Amendment (Complaints and Discipline) Bill 2000
Schedule 2 Law revision and other amendments
[12] Section 171M Jurisdiction of Supreme Court not affected
Omit section 171M (2). Insert instead:
(2) That inherent power or jurisdiction extends to interstate legal
practitioners and locally registered foreign lawyers.
Page 14
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